[G.R. No. 79554. December 14, 1989.

LEOPOLDO G. DIZON, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and D.M. CONSUNJI,
INC., respondents.

Citizens Legal Assistance Office for petitioner.

Marcos S. Pagaspas for private respondent.

SYLLABUS

1. LABOR AND SOCIAL LEGISLATION; TERMINATION OF EMPLOYMENT; UNLAWFUL DISMISSAL;

BURDEN OF PROOF LIES WITH THE EMPLOYER TO PROVE THE LAWFUL CAUSE TO SUSTAIN THEREOF.
It is firmly settled that in an unlawful dismissal case, the employer has the burden of proving the lawful
cause sustaining the dismissal of the employee. Respondent Consunji did show that petitioner Dizon was
not in his workplace on 17 May 1982, the day the strike was declared and went into effect, as well as on
24 May 1982, the day the return-to-work order became effective; actually, petitioner himself so stated
in his pleadings before the POEA. Thus, Consunji was able to make out (even if only by petitioner's own
statements) a prima facie case that petitioner had joined in the strike and had failed to comply with the
return-to-work order of Director Imson, which constituted grounds for holding petitioner liable for
breach of his contract of employment and hence for dismissing him from his employment. It must be
noted, however, that petitioner Dizon showed, by a letter dated 4 January 1983 of respondent
Consunji's project-nurse, that he had been afflicted with severe skin rashes for sometime and that he
had reported at the Company clinic thrice before 17 May 1982 and visited the same clinic five (5) times
after 21 May 1982, for treatment and medication. Petitioner Dizon denied participation in the strike and
disclaimed any intent to defy the return-to-work order. He stated that on 17 May 1982, he went to the
Company clinic and thereafter returned to his quarters but that the project-nurse had failed to include
17 May 1982 among the dates he had gone to the Company clinic. 10 Thus, while petitioner's evidence
(as distinguished from his pleadings) did not show affirmatively that he had indeed visited the Company
clinic on 17 May 1982, it appears to the Court that petitioner submitted on at least prima facie basis an
adequate explanation for his absence from his work station on the day the strike began and the day the
return-to-work order went effective. Petitioner, in other words, offset or negatived the prima facie case
made out by private respondent Consunji for a lawful dismissal: the balance of evidence thus moved to
equipoise.

2. ID.; ID.; ID.; EMPLOYER MUST AFFIRMATIVELY SHOW ADEQUATE EVIDENCE THAT THE
DISMISSAL WAS FOR A JUSTIFIABLE CAUSE. The employer must affirmatively show rationally
adequate evidence that the dismissal was for a justifiable cause. The burden of proof in effect moved
back to and once again rested on respondent Consunji, the employer asserting the existence of a just
cause for dismissal. This burden of proof Consunji did not discharge. As a large and well organized
company, Consunji may be presumed to have kept personnel records showing, e.g., which employees
were present or absent for work on particular days. No records were submitted in evidence to show
whether or not petitioner Dizon reported for work or went on sick call on or between the dates he went
to the clinic for treatment. It is contended that Dizon's skin rashes were not debilitating and not
sufficient to explain his failure to report for work; but no certificate or statement relating to the medical
or physiological nature and effect of those rashes, or to the cause thereof, was presented by employer
Consunji's counsel. Moreover, even should competent proof of the "non-debilitating" character of
Dizon's skin rashes have been put into the record, such would not necessarily have shown intent to
participate in the strike to defy Director Imson's order; such proof would have been consistent with, for
instance, laziness and gold-bricking on Dizon's part. The list of the strikers' names made on the project
site while the strike was in progress was similarly, and conspicuously, not submitted in evidence.

3. ID.; ID.; ID.; EMPLOYEE MUST HAVE AN OPPORTUNITY TO PRESENT HIS DEFENSE OR
EXPLANATION. The failure of Consunji to discharge the onus probandi resting on it, must be taken in
conjunction with its conceded failure to conduct an investigation on the project site before serving
Dizon his notice of termination. It may be supposed that the carrying out of such an investigation on site
before repatriation, would not have been easy. But petitioner was entitled under our law to an
investigation where he would be informed of the charges against him and have an opportunity to
present his defense or explanation before being dismissed. What is at stake in such a case is not simply a
property right but also the employee's means of livelihood. Besides, if an investigation had been
conducted, Consunji might well have been convinced by Dizon's explanation. We conclude that private
respondent Consunji had failed to show that justifiable cause had attended petitioner Dizon's dismissal
and that public respondent NLRC's decision relieving Consunji of liability for such dismissal was not
supported by substantial evidence of record and hence constituted a grave abuse of discretion.

RESOLUTION

FELICIANO, J p:

Petitioner Leopoldo G. Dizon seeks to annul and set aside the decision of the respondent National Labor
Relations Commission (NLRC) dated 6 March 1987 reversing the decision rendered by the Administrator
of the Philippine Overseas Employment Administration (POEA). The POEA decision had ordered private
respondent D.M. Consunji, Inc. (Consunji), to pay petitioner the amounts of RP P1,837.86 and US
$6,720.00 representing his unpaid salaries for the period from May to June 1982 and his wages for
twenty-one (21) months covering the unexpired portion of his contract, respectively. LLjur

On 4 December 1981, petitioner Leopoldo Dizon entered into an Overseas Employment Contract 1 with
respondent Consunji which stipulated, among other things, that for a period of two (2) years petitioner
would work as a senior carpenter for Consunji at its New Istana Construction Project in the State of
Brunei for a monthly salary of US $320.00; that should the petitioner voluntarily resign before the expiry
date of the contract or should his contract be terminated for cause as provided therein, petitioner shall
be liable for the reimbursement of his transportation fare back to the Philippines and other incidental
expenses incurred by the company in his favor. Petitioner departed for Brunei on 3 March 1982, the
date when his contract took effect. cdphil

Sometime in April 1982, petitioner, according to him, became afflicted with skin rashes which forced
him to seek medical help from the Company's clinic at the project site. He was treated there on the
following dates: 13, 29 April; 3, 25, 28, 29 May; 1 and 7 June. 2 On some of those days, petitioner, by his
own averment, did not report for work and was oftentimes constrained to remain inside his quarters
while taking oral medication.

On 17 May 1982, petitioner was again absent from his work place when respondent's workers in the
New Istana Project staged a strike demanding an increase of salary. Considering that what was being
constructed on the site was the Sultan's Palace which had to be finished in time for the Independence
Day of the State of Brunei in 1984, POEA Director Manuel G. Imson, upon request of Consunji, and after
Brunei authorities had made clear that the strike was illegal under Brunei law, was dispatched by the
Ministry of Labor and Employment to the site to resolve that problem. Director Imson, however, failed
to convince the workers to enter into a compromise agreement with Consunji. Consequently, after
visually observing the strike and after Consunji listed the names 3 of the participants in said strike,
Director Imson issued on 21 May 1982 a return-to-work order. 4 Petitioner failed to comply with that
directive; according to him, he was then still suffering from severe skin rashes. He reported to the
medical clinic on 29 May 1982 and on 1 and 7 June 1982 to continue his treatment and medication.
LibLex

On 9 June 1982, or barely three (3) months from the date of effectivity of petitioner's employment
contract, Consunji terminated the services of some three hundred sixty (360) workers in the New Istana
Project, including those of petitioner, upon the ground that they had breached paragraphs (e) and (f) of
clause 13 of their employment contracts. 5

On 18 August 1982, after repatriation to the Philippines, petitioner commenced BES Case No. 82-8764
charging Consunji with illegal dismissal; non-payment of seventy percent (70%) of his salary for the
months of May and June 1982; unfair deductions for his repatriation expenses; and unfair labor practice.

Consunji denied the illegal dismissal charge and claimed that petitioner had been validly dismissed,
considering that he had breached the contract of employment by taking part in an illegal strike and
disobeying the return-to-work order issued by the POEA Director.

On 7 March 1985, Administrator Patricia Sto. Tomas of the Workers' Assistance and Adjudication Office
of the POEA, after finding that there was no evidence clearly showing that petitioner had participated in
the illegal strike and had defied the return-to-work order of the POEA, rendered a decision in favor of
petitioner. The dispositive portion of the decision states:

WHEREFORE, consistent with the above findings, judgment is hereby rendered ordering respondent
D.M. Consunji, Inc. to pay the following:

(a) the sum of P1,837.86 representing the complainant's unpaid salary (70%) for the months of May
and June 1982; and

(b) the sum of US $6,720.00 or its equivalent [in] Philippine Currency at the time of actual payment,
representing complainant's wages for the unexpired portion of his contract which is 21 months at the
rate of US $320.00 a month.

SO ORDERED." 6
Consunji went on appeal to the NLRC. The NLRC reversed the POEA Administrator in a decision 7 dated 6
March 1987 declaring petitioner's dismissal to have been effected for justifiable cause. Hence this
recourse on certiorari.

The sole issue to be resolved in this case is whether the dismissal of petitioner Dizon was justified on the
ground that he had participated in the illegal strike and had refused to obey Director Imson's return-to-
work order.

The petition must be granted.

It is firmly settled that in an unlawful dismissal case, the employer has the burden of proving the lawful
cause sustaining the dismissal of the employee. 8 Respondent Consunji did show that petitioner Dizon
was not in his workplace on 17 May 1982, the day the strike was declared and went into effect, as well
as on 24 May 1982, the day the return-to-work order became effective; actually, petitioner himself so
stated in his pleadings before the POEA. Thus, Consunji was able to make out (even if only by
petitioner's own statements) a prima facie case that petitioner had joined in the strike and had failed to
comply with the return-to-work order of Director Imson, which constituted grounds for holding
petitioner liable for breach of his contract of employment and hence for dismissing him from his
employment. It must be noted, however, that petitioner Dizon showed, by a letter dated 4 January 1983
of respondent Consunji's project-nurse, that he had been afflicted with severe skin rashes for sometime
and that he had reported at the Company clinic thrice before 17 May 1982 and visited the same clinic
five (5) times after 21 May 1982, for treatment and medication. 9 Petitioner Dizon denied participation
in the strike and disclaimed any intent to defy the return-to-work order. He stated that on 17 May 1982,
he went to the Company clinic and thereafter returned to his quarters but that the project-nurse had
failed to include 17 May 1982 among the dates he had gone to the Company clinic. 10 Thus, while
petitioner's evidence (as distinguished from his pleadings) did not show affirmatively that he had indeed
visited the Company clinic on 17 May 1982, it appears to the Court that petitioner submitted on at least
prima facie basis an adequate explanation for his absence from his work station on the day the strike
began and the day the return-to-work order went effective. Petitioner, in other words, offset or
negatived the prima facie case made out by private respondent Consunji for a lawful dismissal: the
balance of evidence thus moved to equipoise. cdphil

But equipoise is not enough; the employer must affirmatively show rationally adequate evidence that
the dismissal was for a justifiable cause. The burden of proof in effect moved back to and once again
rested on respondent Consunji, the employer asserting the existence of a just cause for dismissal. This
burden of proof Consunji did not discharge.

As a large and well organized company, Consunji may be presumed to have kept personnel records
showing, e.g., which employees were present or absent for work on particular days. No records were
submitted in evidence to show whether or not petitioner Dizon reported for work or went on sick call on
or between the dates he went to the clinic for treatment. It is contended that Dizon's skin rashes were
not debilitating and not sufficient to explain his failure to report for work; but no certificate or
statement relating to the medical or physiological nature and effect of those rashes, or to the cause
thereof, was presented by employer Consunji's counsel. Moreover, even should competent proof of the
"non-debilitating" character of Dizon's skin rashes have been put into the record, such would not
necessarily have shown intent to participate in the strike to defy Director Imson's order; such proof
would have been consistent with, for instance, laziness and gold-bricking on Dizon's part. The list of the
strikers' names made on the project site while the strike was in progress was similarly, and
conspicuously, not submitted in evidence. cdphil

The failure of Consunji to discharge the onus probandi resting on it, must be taken in conjunction with
its conceded failure to conduct an investigation on the project site before serving Dizon his notice of
termination. It may be supposed that the carrying out of such an investigation on site before
repatriation, would not have been easy. But petitioner was entitled under our law to an investigation
where he would be informed of the charges against him and have an opportunity to present his defense
or explanation before being dismissed. What is at stake in such a case is not simply a property right but
also the employee's means of livelihood. 11 Besides, if an investigation had been conducted, Consunji
might well have been convinced by Dizon's explanation.

We conclude that private respondent Consunji had failed to show that justifiable cause had attended
petitioner Dizon's dismissal and that public respondent NLRC's decision relieving Consunji of liability for
such dismissal was not supported by substantial evidence of record and hence constituted a grave abuse
of discretion.

As to the amount of damages to which petitioner Dizon is entitled, the Court considers that, given all the
circumstance of this case, and to avoid the delay and difficulty of proving that petitioner had earned
some income during the relevant period to mitigate his damages, an award equivalent to his contract
salary for fourteen (14) months, (rather than for the full unexpired term of the contract twenty-one
[21] months) without any qualification or deduction, would be sufficient and reasonable. cdll

We must similarly hold that private respondent Consunji had no basis for withholding from petitioner
his last two months salary (for May and June 1982) and deducting therefrom his repatriation and related
expenses.

WHEREFORE, the decision of the public respondent NLRC dated 6 March 1987 is hereby SET ASIDE and
the decision of the POEA dated 7 March 1985 is hereby REINSTATED and MODIFIED so as to require
private respondent Consunji to pay petitioner Dizon the following:

a) the sum of RP P1,837.86 representing petitioner's unpaid salary (70%) for the months of May
and June 1982; and

b) the sum of US $4480 or its equivalent in Philippine currency at the time of actual payment
representing his wages for fourteen (14) months at the rate of US $320 a month.

No pronouncement as to costs.

SO ORDERED.